Katherine Alphonso – Class Action Defense

June 2, 2026June 2, 2026 by Gerald L. Maatman, Jr.

Oregon Federal Court Denies Class Certification Due To The Impact Of Unique Defenses On The Named Plaintiffs

By Gerald L. Maatman, Jr., Jennifer A. Riley, Katherine L. Alphonso, and Jamar D. Davis

Duane Morris Takeaways: On May 28, 2026, in Ashley Schroeder et al. v. University of Oregon, Case No. 6:23-CV-01806, 2026 WL 1494043 (D. Or. May 28, 2026), Judge Michael J. McShane of the U.S. District Court for the District of Oregon – without deciding whether the University of Oregon adequately supports or invests in women athletics – reaffirmed that the typicality requirement for class certification cannot be met when “there is a danger that absent class members will suffer if their representative is preoccupied” with its own unique defenses. The ruling is a significant one for corporate counsel and provides a blueprint for defense of class action claims.

Case Background

In the 2000s, particularly at the collegiate level and among Division 1 institutions in warm-weather conferences, beach volleyball was a rapidly growing sport. Id. at *2. In 2009, the National Collegiate Athletic Association (“NCAA”), under its Emerging Sports for Women program, designated women’s beach volleyball an “emerging sport” for women. Id. Notably, the NCAA Emerging Sports for Women program was designed to encourage schools to create more opportunities for women’s athletic participation to meet the requirements of Title IX of the Education Amendment of 1972 (“Title IX”). Id.

As a state educational institution, the University of Oregon (the “University”) receives federal funds and is therefore subject to Title IX requirements. Id. at *1. In 2013, the University’s athletic department announced the addition of women’s volleyball to its roster of varsity teams. Id. at *2. Since its announcement, the University has worked to approve new beach volleyball facilities, provide locker rooms, make scholarships available for recruitment, and hire a new coach. Id. It currently sponsors eight men’s varsity teams (baseball, basketball, cross country, football, golf, tennis, indoor track and field, and outdoor track and field) and twelve women’s varsity teams (acrobatics and tumbling, basketball, beach volleyball, cross country, golf, lacrosse, soccer, softball, tennis, indoor track and field, outdoor track and field, and (indoor) volleyball). Id. at *1. The University also hosts forty-one club sports teams, including but not limited to rowing, which operate outside of the school’s athletic department and are generally student organized. Id. at *1-2.

Plaintiffs — consisting of female student athletes attending the University, five of which are current or former members of the women’s beach volley team (“Beach Volleyball Plaintiffs”) and four of which are current or former members of the women’s club rowing team (“Rowing Plaintiffs”) — filed a complaint alleging the University continues to violate Title IX by depriving its female student-athletes of equal treatment, equal access to athletic financial aid permissible under federal law, and equal opportunities to participate in varsity athletics. Id. at *1.

In pursuit of their claims, Plaintiffs asked the Court to certify the following classes: (1) Equal Treatment and Benefits Class defined as “all current and future female students who participate or will participate in intercollegiate varsity athletics at [the University]”; (2) Damages Class for the Equal Treatment and Benefits claim; (3) Equal Financial Aid Class defined as “all current and future female students who participate or will participate in intercollegiate varsity athletics at [the University] and do not receive all athletic financial aid permissible under federal law”; (4) Damages Class for the Equal Financial Aid claim; and (5) Effective Accommodation Class defined as “all present and future female students at [the University] who are being deprived of the opportunity to participate on women’s varsity intercollegiate athletic teams.” Id. at *3-4.

The District Court’s Decision

Judge McShane denied class certification for four of the five requested classes, namely the Equal Treatment and Benefits Class, both Damages Classes, and the Effective Accommodation Class. Id. at *5-8. The Court stayed its class certification consideration as to the Equal Financial Aid Class pending final disposition of the underlying claim on its merits. Id. at *4-5.

With regards to the Equal Treatment and Benefits Class, the Court held Federal Rule of Civil Procedure 23(a)’s typicality requirement ultimately prevented certification of the class. Id. at *6. While factual variations between a named plaintiff and proposed class members do not per se defeat typicality, typicality cannot be met when “there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it.” Id. at *6 (internal citation omitted).

Here, rather than discussing all purported class members, Plaintiffs focused almost exclusively on the unique experiences of the Beach Volleyball Plaintiffs. Id. For example, unlike most of the other women’s varsity teams, the beach volleyball team practiced and competed off campus; until September 2025, the beach volleyball team was the only varsity team without its own locker room; and the beach volleyball team was the only varsity team without a dedicated full-time head coach who was not also coaching another team. Id. Moreover, the Beach Volleyball Plaintiffs “would need to address whether their participation in an ‘emerging’ varsity sport influences the merits of their Title IX claim.” Id. The Court expressed concern that addressing the unique experiences of the Beach Volleyball Plaintiffs would steal the focus of the litigation, creating an impermissible danger to absent class members. Id.

With regards to the two Damages Classes, the Court held a class action is not a superior method to litigate Plaintiffs’ damages claims because there are “too many distinct individual determinations that frustrate [class action] manageability. Id. at *7; see Fed. Rule of Civ. Prod. 23(b)(3). Again, the atypical experiences of the Beach Volleyball Plaintiffs would require individualized inquiry into any alleged liabilities and/or applicable remedies. Id. In addition, individualized inquiries would be needed “to determine which student-athletes were eligible for various forms of financial aid and the amount of aid they hypothetically would have received.” Id. This is only further complicated by “the University’s policy of allocating financial aid on a team-by-team basis and allowing coaches to make discretionary awards to student-athletes,” resulting in a requisite analysis into which student-athletes may have been eligible for aid but were not necessarily awarded scholarships because of other individualized considerations. Id.

With regards to the Effective Accommodation Class, the Court held the Rowing Plaintiffs were not members of the proposed class because they failed to demonstrate “they have the abilities to participate in varsity athletics . . . ” as their rowing times were markedly lower than the worst performing Division 1 rowing teams. Id. at *8 (emphasis in original). As such, Rowing Plaintiffs cannot be deprived of the opportunity to participate in varsity athletics. Id. Moreover, the Rowing Plaintiffs’ “inability to compete on a varsity level subjects them to a unique defense that defeats typicality.” Id. As mentioned above, rowing was a club sport operating outside of the school’s athletic department.

An interesting focus in the Court’s ruling was its dicta regarding the “proverbial elephant in the Title IX room” — men’s college football. Id. at *2. The Court reasoned that college football has evolved into a highly commercialized enterprise requiring investments—“extensive game-day operations and security; expansive locker room and training facilities; specialized coaching staffs numbering in the dozens; strength and conditioning programs; sports medicine and physical therapy personnel; recruiting operations; charter travel; housing and meal programs; academic tutoring; scholarships; and year-round training infrastructure” — comparative to the scale of its revenue. Id. at *2-3. Specifically, Title IX compliance cannot be measured solely on a dollar-for-dollar basis and must be “viewed across the athletic program as a whole.” Id. at *3.

Implications For Universities And Other Title IX Institutions

The Court’s message to the defense bar here is clear: continue to distinguish the named plaintiffs from the proposed class members (through factual distinctions, discrete issues, shortcomings on judicial efficiency, and unique defenses) as much as possible to oppose class certification. The opinion also provides helpful insight into how the statutory and regulatory framework of Title IX permits disparate expenditures among varying collegiate sports (namely men’s football when compared to other sports), serving as a defense into the extraordinary institutional investments associated with men’s college football that does not run counter to the aims of Title IX.

February 4, 2026February 4, 2026 by Gerald L. Maatman, Jr.

“No Actual Harm Required” – California Court Of Appeal Kicks Open The Door For Standing Under The ICRAA

By Gerald L. Maatman, Jr., Jennifer A. Riley, Daniel D. Spencer, Katherine L. Alphonso, and Kenny T. Tran

Duane Morris Takeaways: On January 21, 2026, in Yeh v. Barrington Pacific, LLC, Case No. B337904, 2026 Cal. App. LEXIS 30 (Cal. App. Jan. 21, 2026), the California Court of Appeal for the Second Appellate District held that plaintiffs have standing to sue under the Investigative Consumer Reporting Agencies Act (ICRAA) without showing any actual injury because the statute authorizes a $10,000 minimum recovery untethered to any actual harm. At the same time, the Court of Appeal affirmed dismissal of the Unfair Competition Law (UCL) claims, reinforcing that UCL standing remains firmly rooted in concrete economic loss that cannot be manufactured from purely technical statutory violations.

Case Background

Barrington Pacific, LLC (Barrington) and its related entities own and operate multiple apartment complexes across Los Angeles, all managed under a centralized process. Id. at *3. Prospective tenants were required to complete a standardized rental application, authorize background screening, and pay a nonrefundable $41.50 application fee. Id. at *4. That fee was expressly allocated to obtaining credit reports, eviction histories, and resident screening reports, as well as processing internal costs. Id. Each applicant signed a written authorization permitting Barrington to obtain background information “including, but not limited to, resident screening and credit checking.” Id.

Between November 2020 and July 2022, more than 100 applicants, who were ultimately approved as tenants, filed individual lawsuits alleging Barrington violated the ICRAA’s disclosure requirements. Id. The alleged violations were procedural in nature, including failure to provide plaintiffs with a means of requesting a copy of such reports, failure to identify the consumer reporting agency, failure to disclose the scope of the investigative consumer reports procured, and failure to offer or provide copies of the reports. Id. at *4-5. Notably, no plaintiff alleged inaccurate information, denial of housing, identity theft, or any adverse consequence whatsoever. Id. at *7. Three plaintiffs also asserted UCL claims premised on the same alleged ICRAA violations. Id. at *5.

After the cases were related and consolidated, with Yeh designated as the lead action, Barrington moved for summary judgment. Id. at *5. Barrington argued that plaintiffs lacked standing because they could not show concrete injury, relying heavily on Limon v. Circle K Stores Inc., 84 Cal.App.5th 671 (2002), which held that uninjured plaintiffs lack standing under the federal Fair Credit Reporting Act (FCRA) when claims are based solely on statutory violations. The trial court agreed, concluding that the ICRAA’s $10,000 provision did not create standing through statutory penalty and that plaintiffs suffered no harm because they became tenants and alleged no inaccuracies in any of the information Barrington had. Id. at *6-7. Summary judgment was entered for Barrington on both the ICRAA and UCL claims. Id. at *6.

The California Court of Appeal’s Decision

The Court of Appeal reversed as to the ICRAA, holding plaintiffs need not prove actual harm to bring an ICRAA claim. Id. at *25. Central to the Court of Appeal’s analysis was Civil Code section 1786.50(a)(1), which permits recovery of “[a]ny actual damages sustained by the consumer as a result of the failure or, except in the case of class actions, ten thousand dollars ($10,000), whichever sum is greater.” Id. at *19. Emphasizing the disjunctive “or,” the Court of Appeal concluded that actual damages and the $10,000 amount are alternative remedies, not cumulative or interdependent. Id. at *20. The Court of Appeal relied on a line of recent California decisions recognizing that statutory schemes may confer standing through statutory damages or penalties untethered from actual harm. It cited Chai v. Velocity Investments, LLC, 108 Cal.App.5th 1030 (2025), Guracar v. California Capital Insurance Co., 111 Cal.App.5th 337 (2024), and Kashanian v. National Enterprise Systems, Inc., 114 Cal.App.5th 1037 (2025), each of which held that statutory damages provisions create standing even where plaintiffs admit no concrete injury. Id. at *11-16. Like those statutes, the ICRAA creates informational rights and attaches a fixed monetary consequence to their violation in order to punish and deter noncompliance. Id. at *18.

The Court of Appeal expressly declined to follow Limon, explaining that its reasoning was tied to the FCRA’s distinct statutory language and federal Article III standing concerns. See Limon, supra, 84 Cal.App.5th at 700-03. The Court of Appeal reasoned that the legislative materials make clear that the “ICRAA was designed to overcome the FCRA’s practical limitations by ensuring that consumers could obtain a nontrivial recovery and thus would be motivated to enforce ICRAA, even when actual damages were nonexistent.” Id. at *24-25. Legislative history also showed the California Legislature intentionally set a minimum recovery, which was $300 in 1975 and has since been increased to $10,000, to incentivize enforcement and compliance. Id. at *25. Of note, opponents of the ICRAA’s enactment criticized the statute precisely because it would impose liability “without regard to whether the individual has ever suffered damages,” further confirming that this result was not accidental but deliberate. Id. at *24.

The Court’s Reasoning on the UCL Claims

Where the opinion strongly favors the defense bar is its treatment of the UCL claims, the Court of Appeal affirmed summary adjudication, holding that Business and Professions Code section 17204 requires injury in fact and loss of money or property, regardless of whether the predicate statute allows recovery without harm. Id. at *31-32. Relying on cases such as Peterson v. Cellco Partnership, 164 Cal.App.4th 1583 (2008), the Court of Appeal reiterated that private UCL standing demands real economic injury. Id. at *31. Per Peterson, a private plaintiff must make a twofold showing: “he or she must demonstrate injury in fact and a loss of money or property caused by unfair competition.” Peterson, 164 Cal.App.4th at 1590.

Here, the Plaintiffs’ theory that the $41.50 application fee constituted lost money failed outright. Id. at *32. They argued that they were harmed because they were required to pay for a report that they were not given a copy of. Id. The Court of Appeal disagreed – the rental application described how the $41.50 non-refundable processing fee would be used to screen applicants with respect to their credit history and other background information. Id. Moreover, the application broke down the elements of the $41.50 fee: $22.99 for credit and screening reports, and $18.51 in costs, including overhead and soft costs, related to the processing of the application. Id. Since the application did not suggest that the $41.50 fee was for a consumer report to be provided to the applicant, the Court of Appeal determined that Plaintiffs received precisely what they paid for: the processing and consideration of their rental applications, which resulted in their approval as tenants. Id. at *32-33. Finally, any failure to provide plaintiffs with copies of their consumer reports within three days also does not constitute an injury because plaintiffs failed to allege any concrete or particularized harm as a result of the delay. Id. at *33.

The Court of Appeal emphasized that applicants paid for screening and processing, received exactly that, and were approved as tenants. Id. The alleged failure to timely provide copies of reports did not deprive plaintiffs of property, cause lost opportunities, or result in financial harm. Id. Technical noncompliance alone was not enough.

Implications for Companies

The takeaway here is twofold.

First, Investigative Consumer Reporting Agencies (ICRAs) under the ICRAA, loosely defined as any person who, for compensation, gathers or communicates information regarding a consumer’s character, reputation, or personal characteristics, usually obtained through extensive, often more personal investigative methods — such as interviews or public record checks — should carefully audit ICRAA disclosures as plaintiffs can proceed without needing to prove actual harm. This decision underscores the ICRAA as a strict liability statute with teeth, and technical compliance matters even when no one is harmed.

Second, this case confirms that California courts remain unwilling to dilute UCL standing requirements. Even in an era of expansive statutory enforcement, courts continue to draw a hard line against no injury, no loss UCL claims. This ruling provides powerful authority to limit exposure by cutting off UCL claims early where plaintiffs cannot show injury in fact and a loss of money or property.